8/13/2019 A Conservative Defense of Punitive Damages

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A conservative defense of punitive damages.

For the past several years a good many conservative legal scholars and commentators have been bemoaning

excessive punitive settlements occurring in civil action in the US. The argument against them has been that

they are too excessive and tend make the cost of doing businesses in the US higher. We are told the reasonwhy medical services are so high is the cost of covering the insurance to protect the practitioners against

high punitive damages. As with any form of cost they are passed on to the consumer and therefore theaverage American customer is made to pay indirectly. !ften the infamous "c#onnald$s coffee case is

brought up and other examples where %uries decided to play &obin 'ood and hit up large corporations for a

bit of pay out to the poorer victim. (es there are excesses and they are indeed wrong but conservatives

who value limited government better think twice about severely limiting punitive damages in upcoming

attempts at legal reform.

Why should they) *ecause the threat of high punitive damages that a %ury will inflict upon a business that

appears to be a bad actor is what keeps most business in line with good business practices and willingness

to act %ustly towards to their customers employees and the communities in which they live and operate.

That the treat of being hit with an huge punitive damages lead businesses not only to follow government

regulations but often go beyond what the regulations re+uire not because out of fear of the government

but out of fear that a huge settlement could put them out of business. Thus regulators do not need to be

excessively intrusive in American business life they need only to set regulations and let the interested

parties use those regulations as standards of wrongful action %ustifying punitive sanction.

,iving in -entral urope for the past five years has taught to appreciate what / used to bemoan aboutliability law and the rather high punitive damage settlements that often came about. 0ust take lighting in

hallways in Apartment complexes. !ften here its very bad if not non1existent. When there is such lighting

provided it is when government actors willing to police such areas and owners are forced to comply with

safety regulations or where the government pays for such safety measures for the owners. And even if

there is such regulations in many places they are not enforced due to the inability of regulators of checking

everyplace. 2ow if someone falls and breaks a leg the administrative courts come in and a fine is given

and perhaps something will be done to make the place safer but not necessarily so. /n the US the owner to

avoid the risk of a personal in%ury lawsuit will get insurance and his insurance company will tell him whathe will need to do in order that they will take him as a client. !ften what the insurance company will tell

him to do will make the place much safer and unlikely that an accident will occur. *ut if it does the

insurance company will pay the damages.

The irony about high punitive damages is that they reduce the need of overly intrusive government

regulators that enforce the public policy that the public demand and politicians feel they much support.

The danger if punitive damages are limited bad actors might merely calculate that fines and othergovernment sanactions are %ust the cost of doing business and create an political environment where

political forces opposed to a market economy will gain more and more political support. The problem with

government fines is that too often bad market actors will find it easy to avoid getting caught